Earlier this year, the Federal Communications Commission adopted a much-celebrated net neutrality order, which is now on appeal before a federal court. That decision forbids cable and phone companies from blocking or throttling websites or charging for “fast lanes” and “slow lanes” on the Internet. But while excellent and important, the FCC order left a few questions to be decided. Could cable and phone companies discriminate against some applications by counting them against users’ monthly data caps, while exempting other apps? Could they congest connections between their networks and big Web companies and charge a toll to remove the congestion? Are there “non-Internet” services that cable companies can place in fast lanes?
The cable and phone companies have wasted no time in testing these limits. Comcast is both exempting its new Netflix competitor from data caps and prioritizing it in a special lane as a supposedly “non-Internet” service. Verizon has announced a program to charge applications for exempting them from the data caps applying to other apps. AT&T also offers this service, which it calls “sponsored data.” And T-Mobile has announced that it will exempt some video applications from users’ monthly allotment, while reducing the quality of all video on its network. All of this goes on even though cable and phone companies seem to recognize that these practices violate the public interest; recently three cable companies seeking merger approval in a public interest statement apparently think it’s not in the public interest to exempt apps from data caps or to charge for interconnection, or else they would not have offered to abstain from these practices for several years. Unless the FCC investigates and stops these practices across the Internet market, its vaunted net neutrality rule could be remembered more as useless, lovely poetry than breathing, living law.
But the FCC has at least one simple case that violates its existing rules—rather than dancing around the edges. Recently, T-Mobile announced that subscribers on plans with caps of 3 GB and more would be automatically enrolled in a product called Binge On. That service is best known for exempting some video services, such as Netflix, from users’ monthly data allotments, but not others, like YouTube, TwitchTV, or Vimeo. In response, many people suggested that this could violate net neutrality—because T-Mobile is discriminating in exempting some applications from data caps.
Whether T-Mobile’s data exemption violates net neutrality or other consumer protections for broadband users is an important question worth discussing (same for Verizon, AT&T, and Comcast—all of whose behavior in this regard seem far more nefarious than T-Mobile’s). Comcast only exempts its own apps, and Verizon and AT&T charge for the privilege, but at least T-Mobile’s program is open to competitors and without charge.
But when it introduced Binge On, T-Mobile also decided to reduce the technical quality of (or “throttle”) all video on its network for subscribers within all data plans. Specifically, while an app like YouTube may send HD-quality streams, T-Mobile is reducing the stream to DVD quality—a quality also known as “not HD.” T-Mobile throttles this video whether or not the video provider is a Binge On data partner, and it does so for every user except those who specifically opt-out online or through a call. (See this T-Mobile FAQ.)
Degrading video quality this way violates the FCC’s no-throttling part of the net neutrality rule, which forbids reducing the quality of an application or an entire class of applications. Even though T-Mobile and its brilliant CEO, John Legere, have done much to shake up the mobile industry in positive ways (they even won me over as a subscriber), this is one practice that the company should, and probably must, abandon.
As a purely legal matter, T-Mobile cannot easily defend its actions by arguing that this discrimination is good for its users. The FCC has already rejected that argument in advance by adopting a “bright-line” rule for all technical forms of discrimination absent some special technical justification. After hearing from millions of Americans throughout 2014, the FCC decided earlier this year that “the record overwhelmingly supports adopting rules and demonstrates that three specific practices invariably harm the open Internet,” and named one of them throttling. (The other two are blocking sites and “paid prioritization,” often called paid fast lanes.) The FCC made it clear that throttling was “inherently … unjust and unreasonable,” so it “bann[ed] conduct that ... inhibits the delivery of ... particular classes of content, applications, or services.” Said another way, and said again by the FCC, “if a broadband provider degraded the delivery of a particular application … or class of application … it would violate the bright-line no-throttling rule.”
It also does not matter that T-Mobile provides a mobile service, not a home cable service, because the FCC applied “the same rules to both fixed and mobile broadband Internet access service.” That means T-Mobile is subject to the same blanket ban on throttling as cable companies. (The FCC order is available in several searchable formats, for those seeking context for each quote above.)
The FCC banned throttling for good reason, namely that Internet service providers should not bias their networks toward some applications or classes of applications. Biasing the network interferes with user choice, innovation decisions of application makers, and the competitive marketplace. The user, not the ISP, should be the kingmaker of apps. Indeed, the commission punished Comcast in 2008 for technically discriminating against an entire class of applications—in that case, peer-to-peer apps. And Sprint briefly considered throttling all video on its network—but it abandoned the effort after public outcry.
In this case, T-Mobile’s throttling has harmed some users. A T-Mobile subscriber in Dallas found that he couldn’t watch HD YouTube and had to call T-Mobile to have Binge On turned off and his connection reset for the throttling to end. Another subscriber posted online that he could not watch YouTube in HD and without it “buffering every 10 seconds.” Several other T-Mobile subscribers posted on Reddit that TwitchTV, owned by Amazon, was being throttled. The subscribers also called representatives to turn off Binge On to stop the throttling. These users, many of the commenters to their posts, and others online were unaware that T-Mobile would engage in throttling. (T-Mobile declined to comment on the record about these allegations but generously agreed to several phone calls to answer factual questions about the programs.)
It appears that T-Mobile’s main defenses are that the competitive mobile market is special, that T-Mobile offers an opt-out, and that consumers love Binge On and using less data to watch DVD-quality video. But the FCC already rejected the first argument by specifically extending rules to the mobile market. The opt-out argument also fails. To begin, T-Mobile’s “choice” is to opt out, rather than to opt in. Nothing in the FCC’s order suggests that AT&T, Comcast, or T-Mobile can opt everyone into a discriminatory offering and then demand that users go to some lengths to opt into an open Internet. Many users on forums did not even realize they were opted into throttling and expressed alarm that their YouTube and TwitchTV streams were loading poorly with bad quality. Furthermore, these users also had no idea they could opt out until they called T-Mobile. Default choices often remain unchanged for no reason other than being the default, either because of this lack of information or humans’ status quo bias. As the stated public policy of the FCC for many years has been against throttling and for an open Internet, it seems weird to nudge people into default throttling. I personally opted out of Binge On through the website, and it was pretty annoying. I had to create a T-Mobile Web account for the first time, which involved setting a password and three security questions; I then seemed unable to opt out through “Change Plan,” “Change Data,” or “Change Service,” or under “Usage,” but eventually found the opt-out under “Profile,” then “Media Settings.”
T-Mobile seems to believe that it is doing its users a favor. Its materials have emphasized that, if the video is “optimized” (meaning throttled), then users can watch three times as much video per month while using the same amount of data. (T-Mobile does not charge overages, but when users hit their data limits at some point in a month, it reduces the quality of users’ connections dramatically—often to a crawl, or what T-Mobile calls “2G” speeds.) But these data allotments themselves are controversial. As the nonprofit Free Press stated, “you fabricate a problem for customers; then you make that problem go away and act like you’ve done them a huge favor.”
There is just one exception to the FCC’s no-throttling rule—if a company can prove that throttling is “reasonable network management.” But the FCC specified a few factors to determine whether network management is “reasonable,” including whether congestion management affects all applications equally or is “triggered only during times of congestion and whether it is based on a user’s demand during the period of congestion.” Here, T-Mobile is throttling some applications (video) and not others, not throttling only during times of congestion, and doing so at all times.
Other observers should and will ask the important and interesting questions about Comcast’s actions and AT&T’s, and also whether T-Mobile’s data exemptions should be illegal. But T-Mobile’s throttling may be the most obvious violation, one whose merits the public has already debated, and whose questions the FCC has already answered.
Disclaimer: I have worked on net neutrality issues for more than a decade and advise a lot of companies. But I do not speak for any of those companies here, and these views are my own.
This article is part of Future Tense, a collaboration among Arizona State University, New America, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, visit the Future Tense blog and the Future Tense home page. You can also follow us on Twitter.